IN THE CASE OF:	  

		BOARD DATE:	  2 October 2008

		DOCKET NUMBER:  AR20080012006 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, correction of his records to show he was honorably separated with a medical discharge.  He also requests a copy of an “undeleted” Report of Separation (DD Form 214)

2.  The applicant states, in effect, he was found unfit for service due to leg trauma and should have received a medical discharge.

3.  The applicant provides a Standard Form (SF) 180 (Request Pertaining to Military Records), dated 20 April 2008, in support of his application.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.


2.  The applicant provides an SF 180, dated 20 April 2008, in which he requests a copy of an “undeleted Report of Separation.”  This is a matter that does not require Board action.  An undeleted copy of the applicant’s DD Form 214 from his personnel record will be provided as an enclosure to this Record of Proceedings.  Therefore, this issue will not be further discussed in these proceedings.

3.  The applicant’s military service records contain an SF 93 (Report of Medical History), dated 21 April 1981, that shows in response to Item 8 (Statement of Examinee’s Present Health and Medications Currently Used) the applicant entered, in pertinent part, “I am in good health.”  On the reverse side of the form the applicant acknowledged having had a tonsillectomy and that he had been stabbed with a pencil.  Item 25 (Physician’s summary and elaboration of all pertinent data - Physician shall comment on all positive answers in Items 9 through 24.  Physician may develop by interview any additional medical history he deems important, and record any significant findings here.), shows the medical doctor noted “Tonsillectomy - 1979.  Hospitalized overnight 24 hours; stabbed in right side with pencil.  Not hospitalized.”  This item also contains the statement “[d]enies significant past medical history and complaints.”  This document further shows both the applicant and physician placed their signatures on the document.

4.  The applicant’s military service records contain an SF 88 (Report of Medical Examination), dated 21 April 1981.  Item 73 (Notes), in pertinent part, contains the statement “No disqualifying defects or communicable diseases found on physical inspection at AFEES, Indianapolis, Indiana.”  This document also shows the physician found the applicant fit and qualified for enlistment.

5.  The applicant’s military service records contain a DD Form 1966-Series (Record of Military Processing - Armed Forces of the United States) that was prepared during the processing of the applicant for enlistment in the U.S. Army. Item 24 (Military Service) shows the applicant confirmed that he had no prior military service in any regular or reserve branch of the Armed Forces or in the Army National Guard or in the Air National Guard.  Section V (Certifications), Item 39, shows the applicant certified with his signature that the information given by him in the documents was true, complete, and correct to the best of his knowledge and belief.

6.  The applicant’s military service records contain a DD Form 4-Series (Enlistment/Reenlistment Document - Armed Forces of the United States) that shows the applicant enlisted in the U.S. Army Reserve (USAR) for a period of
6 years on 6 May 1981.  This document also shows that the applicant requested discharge from the USAR on 12 May 1981 for the purpose of enlisting in the Regular Army (RA) and entering active duty for a period of 3 years, effective 
13 May 1981.

7.  The applicant’s military service records contain a DA Form 4856 (General Counseling Form), dated 25 May 1981, that documents the applicant’s initial counseling on current policies and procedures.  Item 9 (Date and Summary of 
Counseling), in pertinent part, shows the applicant indicated that his right knee has been hurting since starting physical training and that he had slight pains in his back.  This document also shows that the applicant placed his signature on this document on 25 May 1981.

8.  The applicant’s military service records contain a DA Form 4856, dated
7 June 1981, that, in pertinent part, documents the applicant missed the entire period of basic rifle marksmanship instruction due to medical profile.  The
DA Form 4856 also shows that both the noncommissioned officer (NCO) who counseled the applicant and applicant placed their signatures on this document on 7 June 1981.

9.  The applicant’s military service records contain a DA Form 4856, dated
7 June 1981, that, in pertinent part, documents the applicant indicated he could not adjust to military life, his physical condition would not allow him to complete training, and he could not take a recycle in training.  This document also shows the applicant indicated he wanted to be discharged under the Trainee Discharge Program (TDP) and that he was counseled on the TDP.  The DA Form 4856 further shows that both the NCO who counseled the applicant and applicant placed their signatures on this document on 7 June 1981.

10.  The applicant’s military service records contain a DA Form 4707 (Entrance Physical Standards Board (EPSBD) Proceedings), dated 22 June 1981.

     a.  The “Findings by the Evaluating Physicians” section, Item 8, provides “[a]fter careful consideration of medical records, laboratory findings, and medical examination, the board finds that the service member was medically unfit for appointment or enlistment in accordance with current medical fitness standards and in the opinion of the evaluating physicians the conditions(s) existed prior to service.  The member has the following medical conditions and/or physical defects (brief narrative summary).”  This item, in pertinent part, also contains the statement, “[t]his patient’s basic medical condition is unchanged from prior to induction.  This 18-year old male has history of activity limitations for several years as a civilian secondary to Osgood-Schlatter’s disease.  Since beginning training he has had increased pain and difficulty walking, running, kneeling, etc.  There has been no new significant trauma.”  This item also shows that physical examination revealed there is decreased range of motion of both knees secondary to pain and contains a recommendation that states, “[p]atient is unfit for induction UP Para 2-10d(2), AR 40-501.  He is fit for retention.  It is recommended that he be separated from service UP Para 5-7, AR 635-200.”


     b.  The “Action by Medical Approving Authority” section shows the findings were approved on 8 July 1981.

     c.  The “Action by Service Member” section, Item 21, contains the statement “I have been informed of the medical findings.  Additionally, I understand that legal advice of an attorney employed by the Army is available to me or that I may consult civilian counsel at my own expense.  I also understand that I may request to be discharged from the U.S. Army without delay or to request retention on active duty.  If retained, I may be involuntarily reclassified into another military occupational specialty based upon my medical condition.”  This item also shows that the applicant placed an “X” in the box for the statement, “I concur with these proceedings and request to be discharged from the U.S. Army without delay” and the applicant placed his signature on the document on 13 July 1981.

     d.  The “Action by Discharge Authority” section shows, on 14 July 1981, the discharge authority directed that the applicant be discharged from the Army.

11.  The applicant's military service records contain a DD Form 214 (Certificate of Release or Discharge from Active Duty), with an effective date of 17 July 1981. Item 12 (Record of Service) shows he entered active duty this period on 13 May 1981 and was honorably discharged on 17 July 1981.  This item also shows the applicant was credited with completing 2 months and 5 days net active service this period; no prior active service; and 7 days prior inactive service.  Item 25 (Separation Authority) shows the applicant was separated under the provisions of Army Regulation 635-200, paragraph 5-7c(2), and Item 28 (Narrative Reason for Separation) contains the entry "Did not meet Procurement Medical Fitness Standards."

12.  A search of the Medline Plus online medical dictionary shows that Osgood-Schlatter’s disease is an oseochondritis (i.e., inflammation of bone and cartilage) of the tuberosity (i.e., a large prominence on a bone usually serving for the attachment of muscles or ligaments) of the tibia that occurs especially among adolescent males.

13.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), in effect at the time of the applicant's discharge, set forth policies, responsibilities, and procedures in determining whether a Soldier was unfit 
because of physical disability to reasonably perform the duties of his or her 
office, grade, rank, or rating.  Chapter 2 (Physical Standards for Enlistment, Appointment, and Induction) implements standards to ensure that individuals medically qualified are free of medical conditions or physical defects that would require excessive time lost from duty for necessary treatment or hospitalization or would likely result in separation from the Army for medical unfitness.  Paragraph 2-10 (Lower extremities), in pertinent part, governs limitation of motion of the lower extremities and states that the joint ranges of motion less than the measurements listed are disqualifying.   Chapter 3, paragraph 3-1 (Standards of unfitness because of physical disability), of this Army regulation, in pertinent part, provides that the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of their office, grade, rank, or rating.

14.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) sets forth the basic authority for separation of enlisted personnel.  Chapter 5, in pertinent part, provides for the separation or release from active duty of personnel who did not meet procurement medical fitness standards.  Specifically, members who were not medically qualified under procurement medical fitness standards when accepted for initial enlistment will be separated when medical proceedings, regardless of the date completed, establish that a medical condition was identified by appropriate military medical authority within 4 months of the member’s initial entrance on active duty.  This document also provides, in pertinent part, that separation will be accomplished within 72 hours following approval by the separation authority for members who have not completed basic training or 8 weeks One Station Unit Training (OSUT).

15.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. It identifies the SPD code of “JFT” as the appropriate code to assign to enlisted Soldiers administratively discharged under the provisions of Army Regulation 635-200, paragraph 5-7c(2), who did not meet procurement medical fitness standards.




DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his records should be corrected to show he was honorably separated with a medical discharge because he was found unfit for service due to leg trauma.  The applicant’s request for medical discharge was carefully considered; however, he provides insufficient evidence in support of his claim.

2.  The evidence of record shows the applicant completed a Report of Medical History on 21 April 1981, prior to his enlistment in the U.S. Army.  The evidence of record also shows that, at that time, the applicant denied any significant past medical history and complaints.

3.  The evidence of record shows that within 2 weeks of entering active duty, the applicant complained that his right knee had been hurting since starting physical training and he had slight pain in his back.  The evidence of record also shows that the applicant missed basic rifle marksmanship training due to medical profile. The evidence of record further shows that within 1 month of entering active duty, the applicant indicated to an NCO in his chain of command that he wanted to be discharged under the TDP.

4.  The evidence of record shows, on 22 June 1981, after careful consideration of medical records, laboratory findings, and medical examination, the EPSBD found the applicant had a history of activity limitations for several years as a civilian (emphasis added), secondary to Osgood-Schlatter’s disease, and that the applicant’s basic medical condition was unchanged from prior to his entry into the U.S. Army.  In addition, the EPSBD noted that there had been no new significant trauma (emphasis added).  Thus, the evidence of record indicates that, upon entry into military service, the applicant failed to disclose his medical condition that existed prior to service (EPTS) and also refutes his claim that he suffered leg trauma subsequent to his entry in the U.S. Army.

5.  The evidence of record shows that the EPSBD found the applicant unfit for entry into service, fit for retention, and recommended separation from the service under the provisions of Army Regulation 635-200, paragraph 5-7.

6.  The evidence of record shows that the applicant was informed of the medical findings of the EPSBD.  In addition, he acknowledged with his signature that he understood that legal advice of an attorney employed by the U.S, Army was available to him or that he could consult civilian counsel at his own expense.  He also acknowledged that he understood he could request to be discharged from 

the U.S. Army without delay or to request retention on active duty.  The evidence of record further shows that, at that time, the applicant indicated he concurred with the EPSBD proceedings and requested discharge from the U.S. Army without delay.

7.  The evidence of record shows that the applicant's EPSBD and subsequent discharge were in accordance with the regulatory guidance for Soldiers with medical conditions that EPTS and were identified by an appropriate military 
medical authority within 4 months of the Soldier's initial entry training.  In this 
regard, the evidence of record shows that the applicant first complained of pain in his right knee on 25 May 1981 and he was appropriately referred to an EPSBD on 22 June 1981.  The evidence of record also shows that the applicant was honorably discharged under the provisions of Army Regulation 635-200, paragraph 5-7 (Separation of personnel who did not meet procurement medical fitness standards).  Thus, the evidence of record confirms the applicant was properly and equitably discharged and his DD Form 214, with an effective date of 17 July 1981, accurately documents his record of military service.  Therefore, the applicant is not entitled to correction of his military service records.

8.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.  Therefore, there is no justification for granting the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

_____X___  ____X____  _____X___  DENY APPLICATION









BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      __________X____________
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080012006



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ABCMR Record of Proceedings (cont)                                         AR20080012006



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